OTTAWA - Justice Minister Peter MacKay stunned several lawyers at a meeting in Toronto when he appeared to turn aside a question about the dearth of women and visible minorities on federally appointed courts, saying they just “aren’t applying” for the jobs.
MacKay went on to say women fear an “old boys” network on the bench would dispatch them on circuit work to hear cases in courthouses across a region — a prospect he described unappealing for women with children at home.
According to people in attendance last Friday, MacKay said that as a new father he understands women’s reluctance to leave their children because, while he didn’t want to downplay the role that fathers play, women have a special bond with their children.
Several of the men and women at the meeting of the Ontario Bar Association’s council described the remarks to the Star variously as “disappointing,” “bizarre,” “frustrating” or “offensive.”
In the first instance, they said the answer failed to address the issue of diversity. Secondly, they suggested it was presumptuous if not insensitive, and thirdly it betrayed a lack of understanding of, or commitment to, the goal of making the judiciary more representative, they said.
The Ontario Bar Association recorded the session, but refused to release the audio to the Star, saying it was a “private meeting.”
MacKay’s office said it did not have a transcript and declined to urge the OBA to release the recording.
Arleen Huggins, president of the Canadian Association of Black Lawyers, said she asked the Conservative minister in charge of federal appointments to superior trial and appellate courts across the country what steps the government would take to address the lack of diversity and of visible minority judges on the bench, using the example of initiatives it took to boost the number of women in the past.
“His response was then exclusively focused on women,” she said.
Ottawa lawyer Jonathan Richardson said MacKay’s “immediate answer was, ‘Yes there should be more,’ but that ‘they simply aren’t applying.’ ”
Huggins, Richardson and Ottawa lawyer Juliet Knapton recalled MacKay went on to tell the audience of several dozen lawyers who, as Richardson put it, he “believed some women would be discouraged from seeking to be judges because of a fear of circuiting . . . because he believed the old boys’ network among the judges — that’s the exact phrase he used — would make these new women judges go circuit. And then this would take them away from their children.”
“He said he now sees the bond that mothers have with their children. And I was just gobsmacked,” said Richardson.
“Firstly, I’m a new father, I’ve got an 11-month old, so who is he to judge which of my wife or I has a more special bond with our child — I’d say it’s absolutely equal. Secondly, who is he to judge what bond any woman may have with her children, or any other potential judicial applicant may have with his or her children?
“It just seemed to be this attitude of, ‘We don’t want to be taking you away, therefore we can justify appointing men to the bench,’ — it just seemed this bizarre justification.”
To Knapton, who has just been re-elected to the Ontario Bar’s council but is now on maternity leave with newborn twins, MacKay “really didn’t deal with the issue of race or aboriginals or any of the other sorts of groups that we would like to see reflected on the bench so that we have a bench that’s more diverse and reflects the population of this province.”
She was “irked” by the fact MacKay turned the discussion into an issue not just “about gender but about motherhood,” with “the whole push of himself as a new father and somehow evangelicizing women” in his references to a “special bond between a mother and a child that is different from a father.”
Huggins said she was “disappointed” and “extremely frustrated” by MacKay’s replies, including when he was asked a follow-up question by someone else about whether the government would commit to being bound by the candidates put forward by a federal judicial advisory committee — just like the provincial government which is mandated to select judges for provincial courts from a list put forward by the provincial advisory committee.
She said MacKay appeared to suggest the process was much improved because there is more diversity on the judicial advisory committees themselves. However, he made no commitment to pick from a slate.
Indeed, said Huggins, MacKay had no factual basis in the first place to suggest visible minority candidates “are not applying” for seats on the bench because there is no information that the government keeps such statistics.
“They may be applying in droves for all we know, but there is no statistical data that is being kept,” said Knapton.
Huggins pointed to a 2012 study by Ryerson’s Diversity Institute that identified a striking lack of diversity in the judiciary.
Looking at judges across the GTA, it said that in the Court of Appeal for Ontario, whose judges are named federally, 4.2 per cent of judges are visible minorities (one of the 22 judges). Neither the chief justice nor the associate chief justice was a visible minority.
In the Ontario Superior Court of Justice, the senior trial court also appointed federally, 4.3 per cent (four of 93) judges are visible minorities. The regional senior judge, chief justice and associate chief justice are not visible minorities.
It found slightly better representation at the provincially appointed Ontario Court of Justice, with 15.9 per cent, or 10 judges of 63, are visible minorities.